Presumption
Case Analysis
August
23, 2006
The
decision creates an intracircuit split of authority that, presumably, will have
to be resolved by en banc review.
Just
one week to the day before this decision was issued, a different panel of the
court held that there is no rebuttable presumption of reasonableness for sentences
within the guidelines at sentencing, and that U.S. v. Mykytiuk, 415 F.3d 606 (7th
Cir. 2005), only applies on appellate review. U.S. v. Demaree, 2006 WL 2328665
(7th Cir., Aug. 11, 2006).
Demaree
committed her crimes in 2000, and was sentenced in 2004. The 2004 guidelines were
more severe than in the 2000 version. Long-standing law held that using the 2004
guidelines in such a case would violate the ex post facto clause. U.S. v. Seacott,
15 F.3d 1380 1384-86 (7th Cir. 1994).
Nevertheless,
the district court applied the 2004 guidelines. Demaree appealed, and the government
conceded error, agreeing that the 2000 version should have been used.
In
Demaree, however, the court held that, because the guidelines were no longer mandatory,
the ex post facto clause no longer applies.
The
court wrote, “The parties respond that since a sentence within the guidelines
range is presumptively reasonable, and therefore unlikely to be reversed on appeal,
altering the range presumptively alters the sentence. That is not true. The judge
is not required — or indeed permitted — to ‘presume’ that
a sentence within the guidelines range is the correct sentence and if he wants
to depart give a reason why it’s not correct. … His choice of sentence,
whether inside or outside the guideline range, is discretionary and subject therefore
to only light appellate review. The applicable guideline nudges him toward the
sentencing range, but his freedom to impose a reasonable sentence outside the
range is unfettered (cites omitted).”
The
decisions in Demaree and the case at bar cannot both be correct, and the Seventh
Circuit needs to grant en banc review to resolve this issue, or withdraw one of
the two opinions.
As
Judge Posner wrote in U.S. v. Humphrey, 34 F.3d 551, 560 (7th Cir.1994)(Posner,
J., concurring), “Nothing is gained by deferring the inevitable, except to
perpetuate confusion and disarray in our precedents. Caution is a judicial virtue;
but it is not the only judicial virtue. We should be hesitant to create intercircuit
conflicts and to overrule decisions of this circuit, but we should be quick to
terminate gratuitous intracircuit conflicts.”
The decision
in Demaree was written by Judge Richard A. Posner, and was joined by Judges William
J. Bauer and Michael S. Kanne. In the case at bar, the decision was written by
Judge John L. Coffey, and joined by Judges Daniel A. Manion and Ann Claire Williams.
These
particular lineups create an interesting problem, because both Judges Coffey and
Bauer are senior judges.
Pursuant
to Circuit Court Rules, senior judges do not sit on en banc panels, unless they
participated in the original panel. Thus, Judge Coffey could not sit on an en
banc review of Demaree, and Judge Bauer could not sit on an en banc review of
the case at bar.
So,
the balance on the court on this issue is tipped either one way or the other,
depending on which of these two cases were to receive en banc treatment.
-
David Ziemer
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David
Ziemer can be reached by email.
